Court Rejects RIAA's 'Making Available' Theory In Infamous Howell Case
from the good-decisions dept
The lawsuit of Atlantic v. Howell got a ton of attention late last year when some folks, including the Washington Post, misinterpreted an RIAA filing to suggest that the RIAA had claimed that merely ripping your CD to your computer was file sharing. While the RIAA may actually believe that (and has made other statements to that effect), the filing in this case did not say that at all. Instead, it clearly stated that it was the combination of ripping the CD and putting the music into a shared folder that made the songs no longer "authorized." It was simply yet another version of the RIAA's theory that "making available" is the equivalent of distribution for copyright purposes. Still, based on this theory, the RIAA asked for summary judgment against Howell. The court has now come out with a detailed and well reasoned decision completely rejecting the RIAA's "making available" theory, highlighting why it does not appear to be supported by copyright law. It's worth reading if you're interested in this stuff. Either way, the RIAA isn't getting its summary judgment, and the case will proceed later this year.
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Filed Under: copyright, distribution, howell, making available
Companies: riaa
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i have never deluded myself into thinking that my time on limewire was innocuous. i was stealing, and i knew it. i find the maneuvering around copyright loopholes by both sides abhorrent. defending the action of putting ripped files into a shared folder and then citing some minutia in copyright law is just as scummy as what the riaa does.
i think this often happens, though, when the spirit of a law is subjugated to the letter of the law.
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The RIAA **does** consider ripping to be infringement.
"It is undisputed that Defendant possessed unauthorized copies of Plaintiff's copyrighted sound recordings on his computer... Virtually all of the sound recordings on Exhibit B are in the ".mp3" format. Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife's use... Once Defendant converted Plaintiff's recordings into the compressed ".mp3" format **and** they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs." [emphasis added]
What the RIAA seemed to suggest was that ripping was illegal not just file sharing. However, the RIAA has never declared that ripping is legal, they've only declared that they aren't currently prosecuting anyone for ripping.
http://blog.wired.com/27bstroke6/2008/01/what-it-looks-l.html
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Re: tactics
The RIAA wants to define "fair" in such a way that if you happen to put your music in a non-private folder on your computer that is prima-facie evidence that you've shared music (helped someone else steal, therefore you are guilty). That's a definition of "fair" that is unreasonable. That's like saying just leaving a book on a copier makes you guilty of assisting in violating the copyright of the book with out any proof that the copier was ever used.
There is a level of proof they need come up which shows that you actually did something wrong, not just that you (and not the 15 year old who shares your internet connection) happen to be clueless enough to put a file in the wrong place. They need to prove that they were harmed before they should be allowed to sue.
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Well.... technically... if you define 'shared' in the true sense - without regard to security on the system - windows, by default shares all volumes at the top level: eg: C$, D$, etc..
So by looking at this without making any assumptions - all music, even the stuff on their servers would fall under this as 'unauthorized'. Because in fact - it's always "available" to someone with adequate permission.
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Re: The RIAA **does** consider ripping to be infringement.
"Once Defendant converted Plaintiff's recordings into the compressed ".mp3" format **and** they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs."
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Re: Re: The RIAA **does** consider ripping to be infringement.
Of course it has "and" in it. I even highlighted the "and." for clarity. But I **also** provided correspondence with the RIAA where the admit they consider Ripping to be infringement, just not infringement they are currently prosecuting.
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Re:
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I do not own a computer
The RIAA sayes too bad, you stole from us and you know it - now pay up scumbag.
I do not have that kind of money. I will starve if I have to pay them. But I do not think that they care.
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Re: Re: The RIAA **does** consider ripping to be infringement.
Well, if you want to get pedantic and use that kind of reasoning, they also only claimed that "the compressed '.mp3' format" was not authorized. From that then it would follow that all other formats are OK.
No, I think you're off-base.
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Re: Re:#8
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Re: Re: The RIAA **does** consider ripping to be infringement.
Come on Mike, take a good look at the phrase "the authorized copies." It is not referring to Howell's MP3s, but to the "copies distributed by Plaintiffs," i.e. Howell's CDs. By referring to Howell's CDs as the authorized copies, and saying his MP3s are not those copies, the RIAA is implying that his MP3s are not authorized copies at all.
The phrase "no longer" doesn't even make sense, and was only used to fool people into thinking the clause "and they are in his shared folder" even fits into the statement. Howell's MP3s cannot "no longer" be the "copies distributed by Plaintiffs," the plaintiffs never distributed them.The RIAA is not saying that Howell's MP3s are unauthorized because he put them "in his shared folder." That is just a red herring inserted to confuse anyone who gets wise to what they are really saying, which is that his MP3s are unauthorized because they are not "the authorized copies distributed by Plaintiffs."
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THe RIAA considers purchasing a CD to be "infringement"
The RIAA considers placing the CD into a player to be.....
The RIAA considers looking at a lyrics sheet to be....
The RIAA considers playing a CD more than once to be....
The RIAA considers ............................
RIAA. Get a life.
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Re: Re: Re:#8
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Re: shmengle
>
> defending the action of putting ripped files into a shared
> folder and then citing some minutia in copyright law is just
> as scummy
Oh look, an RIAA troll. How is life under the bridge troll?
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Re: Re: Re: The RIAA **does** consider ripping to be infringement.
I'm sorry, but the only quote from the RIAA appears to be "That's not how it works." How is that admitting that they believe that ripping is infringement?
Again, nowhere in the filing do they say that ripping a CD is infringement.
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Re: Re: Re: The RIAA **does** consider ripping to be infringement.
Um. No. Let's talk basic logic here.
The filing says if A&B then C. People are incorrectly interpreting that to say if A then C.
Your statement is the equivalent of if not A then not C. That simply doesn't follow logically and is quite different than the statement I was making.
No one is arguing that point. No one is saying that this statement limits the RIAA's claims. So even if they only point to MP3s that doesn't mean all others are okay. What we're discussing is what does the RIAA specifically say in this filing -- and it clearly says what it thinks make this infringing. That, in no way, means that it thinks nothing else is infringing.
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Re: Re: Re: The RIAA **does** consider ripping to be infringement.
I don't see how you can get that from the language of the filing. It clearly states that it's asking for both A & B to be the case, and that's what makes them unauthorized.
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Re: Re: tactics
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Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
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Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
I think he's a bit fruity; if "no longer authorized" is nonsensical in that reading, then that reading must be incorrect. You can't just choose the meaning you'd like, you have to consider everything that's said.
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Re: Re: shmengle
jesus, look who's calling the kettle black. i've always been fascinated by people who can read words but not understand their meaning. what's it like?
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Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
No, the filing says if A&B&C&... then Z. You're trying to pick out only A&B, to support your own interpretation, while ignoring the rest. Then you fault others for ignoring B. Kettle, pot.
What we're discussing is what does the RIAA specifically say in this filing -- and it clearly says what it thinks make this infringing.
Yes, and it clearly says recordings in the compressed MP3 format. If you want to argue that their statement doesn't limit what they consider to be infringing to the MP3 format, then that same logic would clearly apply to the "shared folder" part of their statement as well. You seem to want to interpret their statement strictly when it suits your own interpretation, but loosely when it doesn't. Sorry, you can't claim it both ways and retain a credible argument. Thus your argument is not credible.
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Forget the trial testimony the email people
Here's the email exchange between Wired's Ryan Singel and the RIAA's Liz Kennedy:
-----------
http://blog.wired.com/27bstroke6/2008/01/what-it-looks-l.html
The RIAA did not respond further.
And that's why THREAT LEVEL concluded today that:
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Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
Yes, you're right that it's asking for both A & B to be the case, but to be the case for what? You claim it states that those factors make Howell's MP3s unauthorized, but it makes no such assertion. All it states is that Howell's MP3s are "no longer the ... copies distributed by Plaintiffs."
"I don't see how you can get that from the language of the filing."
Well, I can support my position by quoting from the actual statement. I would like to see you do that. Just quote the specific language you think states that A & B makes Howell's MP3s unauthorized. Should be easy, right?
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Re: Forget the trial testimony the email people
I'm no friend of the RIAA, but let's not start making wild claims which can't be verified and don't help our cause any regardless. What use is it to say what we think the RIAA thinks is illegal if it's never come up as an issue?
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Re: Re: Re: shmengle
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Ryan's theory is correct. This is an erroneous conclusion."
No, liz coyly claims "That's not how "it" works." Failing to specify what out of his whole letter is "it." Never did Liz actually contradict any one of his direct points. Threat Level's conclusion has never been contradicted by the RIAA before or after it was made.
"The RIAA refuses to comment" != "erroneous conclusion"
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Re: Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
Um. No. Try a little reading comprehension I didn't cherry pick. The statements are clear. There are two actions stated in the filing. It is the *actions* that determine whether a crime was committed. The things you pointed to (compression, etc.) are not actions, they're descriptions.
The filing was clear A + B = C. Nothing more.
Yes, and it clearly says recordings in the compressed MP3 format. If you want to argue that their statement doesn't limit what they consider to be infringing to the MP3 format, then that same logic would clearly apply to the "shared folder" part of their statement as well. You seem to want to interpret their statement strictly when it suits your own interpretation, but loosely when it doesn't. Sorry, you can't claim it both ways and retain a credible argument. Thus your argument is not credible.
Yikes, no, not at all.
You are claiming that I'm saying ONLY the definitions in the filing are what the RIAA considers infringement. I am not.
The RIAA says A+B = C. And you are arguing that I am saying *only* A+B = C. I am not. D + E + F may equal C as well. But the RIAA is not making that argument.
Furthermore, you are suggesting I am saying that not A or not B cannot equal C. But again, I am not.
The RIAA may very well believe that ripping is infringing -- but THEY DO NOT ARGUE THAT in this filing. I am not saying that the only definition of infringement is what's found in that sentence, as you seem to be suggesting I am saying.
This is really basic logic.
The point remains, nowhere in the filing does the RIAA make the case that ripping files, alone, is infringement. You cannot determine that from the filing.
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Re:
IF the conclusion were, "the RIAA refuses to comment," then I might agree that's not erroneous. I think you're being a bit ingenuous, though, if saying "that's not how it works" doesn't constitute a negative response. That's also not ALL she said, as in proper PR fashion she directs us to the RIAA's official stance.
The point is that the official stance and what the RIAA is actually prosecuting against are the pertinent factors. Arguing about what the RIA might think is illegal, despite no evidence (except a lack of contradicting evidence), isn't very useful and just tends to undermine the credibility of your argument. Similarly, stubbornly asserting that because they didn't reply to you point-by-point that means your theory must be correct makes you seem even more fanatical and conspiracy-minded.
It's plain enough that the RIAA thinks most music fans are thieves. It's plain enough that they're fairly irrational in their greed, pursuing cases against such victims as grandmothers, little girls, and dead people. It's plain enough that they actively use (technically and legally) questionable means to find and prosecute their victims. What does claiming that they think X is illegal gain our argument if they aren't even pursuing X in any way at all? They don't make the laws (directly), so it doesn't really matter what they might THINK is illegal.
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Re: Re: Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
Talk about a lack or reading comprehension. I quote from the filing: "Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.". Notice the word converted? And you really expect us to believe that converted isn't an action? Your credibility is sinking even lower. And while I'm at it, I'd like to point that, technically, the statement "they are in his shared folder" describes a state, not an action as you claim. It doesn't even say the defendant put them there. Following a narrow interpretation that is.
You are claiming that I'm saying ONLY the definitions in the filing are what the RIAA considers infringement. I am not.
And talk about "yikes". I am making no such claim. I'm saying that that is all a narrow interpretation says that they are claiming in this filing. If you want to argue against what I really said, then do so, but don't try to put words into my mouth that I didn't say just because they're easier to argue against.
The RIAA says A+B = C. And you are arguing that I am saying *only* A+B = C. I am not. D + E + F may equal C as well. But the RIAA is not making that argument.
That's right. They are strictly only making an argument against "the compressed .mp3 format". Nothing against OGG, CDDA, FLAC, WAV, etc. I quote again: "Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs." Now, if you really want to claim that they made no claims about conversion to MP3, then go ahead. But be aware, the filing is public and the quote I gave can be verified to be accurate. You're going to have a very hard time convincing people they never said "MP3".
The RIAA may very well believe that ripping is infringing -- but THEY DO NOT ARGUE THAT in this filing. I am not saying that the only definition of infringement is what's found in that sentence, as you seem to be suggesting I am saying.
I am suggesting no such thing. What I am saying is that any logic that supports an argument, based on this filing, that they are only claiming that files in a "shared folder" infringe, then would also support just as well an argument that they are only claiming that MP3 format files infringe. Any claim that they only specified location and not format is not true and is indeed "cherry picking".
So the broad interpretation would be that they claim that ripping is infringing, while the narrow interpretation would be that they are only claiming that files ripped to the MP3 format and in a shared folder are infringing. One or the other.
This is really basic logic.
Indeed.
The point remains, nowhere in the filing does the RIAA make the case that ripping files, alone, is infringement. You cannot determine that from the filing.
And if you want to follow the narrow interpretation, the point remains, nowhere in the filing does the RIAA make the case that ripping files to any format other than MP3 is infringement. You cannot determine that from the filing either. Kind of takes some of the reasonableness out of your argument, doesn't it?
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Re: Re: Re: Re: Re: Re: The RIAA **does** consider
On the other hand, by phrasing it that way, they can imply "since they converted it, then placed it in a shared folder, it is obvious that they intended to infringe (steal)". Therefore converting is the first step in infringing. Therefore converting is intent to infringe. Therefore converting is infringing. Laws change interpretation over time, due to court cases. Boiler plate legal documents, drawn by good lawyers, suddenly become insufficiently precise, and must be redone. Assuming it is not to late. This "could" easily be a first step in a chain.
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Re: Re: Re: Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
There are two actions described in the filing: ripping (which is "converting") and placing in a shared folder.
That's it. You claim that the descriptive nature (compressed MP3) needs to be discussed as well, but it is not an action. I am not ignoring the "converting" -- that's "ripping."
There are 2 actions described in the filing A (converting) and B (putting into a shared folder). The filing still very clearly says A + B = C. Nothing more.
That's right. They are strictly only making an argument against "the compressed .mp3 format". Nothing against OGG, CDDA, FLAC, WAV,
Yes, but that's not what anyone is debating here, so I'm not sure why it's relevant.
Now, if you really want to claim that they made no claims about conversion to MP3, then go ahead
I didn't say they didn't make any claims about it being an MP3. I said quite clearly, that the question is what are they considering infringement -- and it's the two actions.
You tried to twist that by then saying that other extraneous parts of the sentence limit the definition. That's simply untrue.
What I am saying is that any logic that supports an argument, based on this filing, that they are only claiming that files in a "shared folder" infringe, then would also support just as well an argument that they are only claiming that MP3 format files infringe
No. It does not. That is faulty logic.
If I said "he stole the blue sweatshirt when he took it out of the store without paying for it" I am describing two actions that lead to the crime: (1) taking the item out of the store and (2) not paying for it. The fact that the sweatshirt is blue does not mean that I am saying red sweatshirts cannot be stolen.
The blue is descriptive -- as is the MP3 part. The actions are what makes up the crime. Converting + placing in a shared folder. Those are the actions. That's what the RIAA is claiming equals infringement.
The fact that it was compressed into an MP3 is like the fact that the sweatshirt is blue. It's not limiting the claims, it's describing the specific case.
And if you want to follow the narrow interpretation, the point remains, nowhere in the filing does the RIAA make the case that ripping files to any format other than MP3 is infringement.
But no one is arguing that that's what the RIAA claimed. The discussion is what are they claiming is needed for it to be infringement. And that definitely includes two things.
Kind of takes some of the reasonableness out of your argument, doesn't it?
Only if you don't understand basic english.
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Re: Re: Re: Re: Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
Actually, I believe the filing said "Defendant converted Plaintiffs' recordings into the compressed .mp3 format..."
You claim that the descriptive nature (compressed MP3) needs to be discussed as well, but it is not an action.
It describes the action plaintiffs are claiming.
Yes, but that's not what anyone is debating here, so I'm not sure why it's relevant.
Well, you certainly seem to be claiming that their claim is not limited to MP3s, so I'd say you're at least one person who is debating that point (and not very well either).
I said quite clearly, that the question is what are they considering infringement -- and it's the two actions.
And those two actions would be converting to MP3 and putting in a shared folder.
If I said "he stole the blue sweatshirt when he took it out of the store without paying for it" I am describing two actions that lead to the crime: (1) taking the item out of the store and (2) not paying for it.
"Taking the item out of the store" equates to "converted to MP3". "Out of the store" describes what kind of "taking" occurred just as "to MP3" describes what kind of "converting" occurred. For example, claiming the item was taken "off the rack" would be quite different from claiming it was taken "out of the store" although it was "taken" in both cases.
The fact that the sweatshirt is blue does not mean that I am saying red sweatshirts cannot be stolen.
No, but it does mean that you're not claiming that one was. And by the way, now you're describing what was taken which is the equivalent of what was converted. And similarly the RIAA isn't claiming that other songs cannot be infringed either.
The discussion is what are they claiming is needed for it to be infringement. And that definitely includes two things.
They are describing what they claim occurred and then claiming that it amounted to infringement. They specifically claimed conversion to MP3 in a shared folder.
Only if you don't understand basic english [sic].
Well, my understanding of basic English is good enough to know to capitalize the word "English" in this case. That would seem to put my understanding of English at least above yours, but I'm willing to let the readers decide.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
Yes, which supports my point. What are you trying to say?
It describes the action plaintiffs are claiming.
No. It doesn't. It describes the file, not the action.
Well, you certainly seem to be claiming that their claim is not limited to MP3s, so I'd say you're at least one person who is debating that point (and not very well either).
No. The only person who brought it up is you. I'm pointing out why it's irrelevant to this discussion. Which it is.
And those two actions would be converting to MP3 and putting in a shared folder.
And how does that show that the RIAA believes that converting alone is infringement?
"Taking the item out of the store" equates to "converted to MP3". "Out of the store" describes what kind of "taking" occurred just as "to MP3" describes what kind of "converting" occurred. For example, claiming the item was taken "off the rack" would be quite different from claiming it was taken "out of the store" although it was "taken" in both cases.
You do realize you're supporting my position at this point, right?
No, but it does mean that you're not claiming that one was. And by the way, now you're describing what was taken which is the equivalent of what was converted. And similarly the RIAA isn't claiming that other songs cannot be infringed either.
Again, you realize you're supporting my position here?
They are describing what they claim occurred and then claiming that it amounted to infringement. They specifically claimed conversion to MP3 in a shared folder.
Indeed, they did, but that has nothing to do with the point we are debating. The point was whether or not they said ripping alone was infringement. They did not.
Well, my understanding of basic English is good enough to know to capitalize the word "English" in this case. That would seem to put my understanding of English at least above yours, but I'm willing to let the readers decide.
Everyone loves pedants. I'm sure they'll side with you based on that alone.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: The RIAA **does** consider ripping to be infringement.
In that case then, I suppose you've now changed your mind (and point). I don't blame you as your position was rather untenable.
No. The only person who brought it up is you. I'm pointing out why it's irrelevant to this discussion. Which it is.
You're arguing, otherwise know as "point out", that it's irrelevant. I'm arguing that to a narrow interpretation of their filing it isn't. And now you want to claim that you haven't been arguing about that? Hello Alice, Wonderland is calling.
And how does that show that the RIAA believes that converting alone is infringement?
I never claimed that it did, so perhaps you should tell me. I can't stop you from changing your own position, but don't try to change mine.
You do realize you're supporting my position at this point, right?
Only if you've switched positions.
Indeed, they did, but that has nothing to do with the point we are debating. The point was whether or not they said ripping alone was infringement. They did not.
That's not what we're debating at all and I never made such a claim. Maybe you need to go back and read what I actually said. My position is, and has been all along (unlike you), that there are two possible interpretations of their claim. A narrow one and a wide one. The narrow one includes both a format and a location whereas the wide one includes neither. Picking only parts of one and the other and cobbling them together is "cherry picking" to support your argument, which is what you have done and makes for an invalid argument.
Everyone loves pedants. I'm sure they'll side with you based on that alone.
Actually, people often like irony and humor. You gave them both at once with a claim of superior English skills in a sentence with grammatical errors. However, there's a difference between being laughed with and laughed at. Ouch. Besides, I kind of doubt if hardly anyone, aside from you and I, is reading this anymore. And at this point even I am getting tired of going around in this circle of attrition with you, especially considering your revisionist positioning. I really can't think of much more to add.
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